Blackstone Mills, Inc.

772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but shall first ascertain the desires of the employees as expressed in the elections hereinafter directed.8 We shall direct separate elections among employees in the following voting groups : (1) All production and maintenance employees employed at the Employer's Stockton, California, plants, including tube benders, sheet metal workers, electricians, general all-round men and helpers, but excluding painters, office and plant clerical employees, professional employees, guards, and supervisors as defined in the Act.9 (2) All painters at the Employer's Stockton, California, plants, excluding supervisors as defined in the Act. If a majority of the employees in voting group (2) vote for the In- tervenor, they will be taken to have indicated their desire to consti- tute a separate bargaining unit, and if a majority in voting group (1) vote for the Petitioner, the Regional Director is instructed to issue certifications of representatives to such labor organizations for such units, which the Board under such circumstances finds to be appro- priate for purposes of collective bargaining. On the other hand, if a majority of the employees in voting group (2) vote for the Petitioner, that group will appropriately be included in the production and maintenance unit and their votes shall be pooled with those in voting group (1).10 If a majority of employees in 'the pooled group select the Petitioner, the Regional Director is instructed to issue a certification of representatives to such labor organization for such unit, which under such circumstances the Board finds to be appropriate for purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] MEMBERS MURDOCK and RODGERS took no part in the consideration of the above Decision and Direction of Elections. 8 In view of our disposition of this case, we find it unnecessary to pass upon the Inter- venor's contention that the painters are craftsmen. 8In agreement with the parties , we exclude the employee of Thompson Neon & Electric Co., who spends all his time in the field doing commercial wiring which is unrelated to that Company's neon sign business. 18 If the votes are pooled , they are to be tallied in the following manner : The votes for the Intervenor shall be counted as valid votes , but neither for nor against the Petitioner ; all other votes are to be accorded their face value, whether for representation by the Peti- tioner or for no union. BLACKSTONE MILLS, INC. and UNITED TEXTILE WORKERS OF AMERICA, A. F. OF L., LOCAL 1817. Case No. 1-CA-1570. August 11, 1954 Decision and Order On April 6, 1954, Trial Examiner A. Bruce Hunt issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 109 NLRB No. 114. BLACKSTONE MILLS, INC. 773 spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermedi- ate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor prac- tices, and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs, and the Respondent requested oral argument. As, in our opinion, the excep- tions and briefs adequately present the issues and the positions of the parties, the request for oral argument is hereby denied. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the ex- ceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications : 1. In finding that the Respondent's unlawful solicitation, in viola- tion of Section 8 (a) (1), did not violate Section 8 (a) (5), the Trial Examiner appears to have relied in part on the Board's decision in The Texas Company, 93 NLRB 1358, 1360,1361. As the Board there held that the solicitation was lawful, that case is not dispositive of such issue herein. However, Harcourt and Company, Inc., 98 NLRB 892, 908, 909, also relied on by the Trial Examiner, fully sup- ports his conclusion that the Respondent's unlawful solicitation not only did not violate Section 8 (a) (5), but also did not convert the strike, economic in its inception, into an unfair labor practice strike.' 2. We further agree with the Trial Examiner that the Respondent 'lid not refuse to bargain collectively, in connection with its December 16,proposal that all litigation be terminated, but for the reason that we cannot find on this record that the Respondent insisted, as a con- dition precedent to the execution of a contract, that the Union with- draw its charges against the Respondent. The proposal in question was one of a number submitted by the Respondent to the Union on December 16. The Union was given a deadline for the acceptance of.the proposals, with the proviso that if the proposals were not ac- cepted by that time, they would be withdrawn and the proposals made by the Respondent at an earlier date would be reinstated. There is no evidence in the record that such earlier proposals made any ref- erence to the pending charges or to any other litigation between the parties. As the proposal in question was therefore tentative on its face, Fallon's testimony is insufficient to establish as a fact that the Respondent insisted that it be accepted. As it is accordingly unnec- See also The Walmac Company, 106 NLRB 1355; Kerrigan Iron Works, Inc., 108 NLRB 953. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD essary to our decision, we do not pass on the Trial Examiner's con- clusion that the Respondent's insistence that the Union's charges be withdrawn did not, under the circumstances of the case, constitute a. refusal to bargain. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Blackstone Mills, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from threatening employees with the loss of accumulated seniority unless they abandon their concerted activities; threatening employees that it will disregard United Textile Workers of America, A. F. of L., Local 1817, as their exclusive bargaining representative; coercively soliciting the abandonment of the strike by individual strikers; and in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Textile Workers of America, A. F. of L., Local 1817, or any other labor organization, to bargain collectively through representa- tives of their own choosing, or to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places in its plant at Clinton, Massachu- setts, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's representative, be posted by it immediately upon receipt thereof and' maintained by it for at least sixty (60) consecutive days thereafter- Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify said Regional Director, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED, that except as otherwise found herein, the complaint be, and it hereby is, dismissed. 2 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words, "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." BLACKSTONE MILLS, INC. 775 MEMBER PETERSON took no part in the consideration of the above Decision and Order. Appendix NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT threaten employees with the loss of accumulated seniority unless they abandon their concerted activities; nor threaten employees that we will disregard United Textile Workers of America, A. F. of L., Local 1817, as their exclusive bargaining representative; nor coercively solicit the abandonment of the strike by individual strikers; nor in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist United Textile Workers of America, A. F. of L., Local 1817, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Sec- tion 8 (a) (3) of the Act. BLACKSTONE MILLS, INC., Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for. 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE A charge and amended charge having been duly filed, a complaint and notice of hearing thereon having been issued and served by the General Counsel, and an answer having been filed by the above-named Corporation, a hearing involving alle- gations of unfair labor practices in violation of the National Labor Relations Act, 61 Stat. 136, herein called the Act, by said Corporation , herein called the Respondent, was held upon due notice at Clinton and Boston, Massachusetts , on January 18 to 23, 1954, before the undersigned Trial Examiner . The allegations of the complaint, as amended at the hearing, in substance are that : (a) On or about June 25, 1953, the Respondent refused , and has since continued to refuse, to bargain collectively with the above-named labor organization, herein called the Union , as the exclusive repre- sentative of its employees in an appropriate unit, although a majority of said em- ployees had designated the Union as their representative for such purposes , in vio- lation of Section 8 (a) (5) and ( 1) of the Act; (b ) on or about said date, and there- after, the Respondent bargained directly and individually with its employees in the 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD appropriate unit concerning conditions of employment, and promised wage increases and improved working conditions to such employees, in violation of Section 8 (a) (5) and (1) of the Act; and (c) on or about July 26, 1953, the Respondent's em- ployees went on strike, which strike was prolonged by the alleged unfair labor prac- tices.' All parties were represented by counsel, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, to argue orally upon the record, and to file briefs and proposed findings and, conclusions. A brief was received from the Respondent and has been considered. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Blackstone Mills, Inc., a Massachusetts corporation, with its principal office and place of business in Clinton, Massachusetts, is engaged in the manufacture, sale, and distribution of plush materials, including furniture upholstery, insulation cloth, pile fabrics, and related products. The Respondent's purchases of raw materials, includ- ing cotton, wool, yarns, dyes, and chemicals, which were shipped to the Clinton plant directly from points outside the Commonwealth of Massachusetts, exceeded $100,000 annually. The Respondent's finished products which were shipped by it directly to points outside that Commonwealth also annually exceeded $100,000. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED United Textile Workers of America, A. F. of L., Local 1817, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Preliminary statement The Respondent and the Union were parties to a series of collective labor agree- ments extending over a period of approximately 15 years. Their last contract termi- nated on July 25, 1953, following unfruitful negotiations for a new agreement. On July 27 a majority of the employees in the bargaining unit began a strike. The parties are agreed that the strike, which was continuing at the time of the hearing, was economic in its inception. They are agreed too that negotiations between the Respondent and the Union continued until December 16. B. The solicitation of strikers to resume work The strike brought about a cessation of the Respondent's operations. Upon vari- ous occasions during the next several months the Respondent solicited striking em- ployees to return to work, and the General Counsel contends that the solicitations were unlawful and that the strike was thereby prolonged and converted into an unfair labor practice strike. We shall examine the Respondent's conduct. Soon after the strike began, Nils Nelson, the Respondent's superintendent, spoke to Louis Casasanto, a striker, who was then picketing. Nelson suggested that Casasanto. return to work, saying that the Respondent's position was fixed and that unless the Union accepted the Respondent's offers the strike would last "until the snow flies." Casasanto declined. About 2 months later, approximately October 8, Nelson and Casasanto talked again. Casasanto was the Union's treasurer, and Nelson said to him that if he would return to work other strikers "would follow." Nelson also said that when the plant resumed operations "on full schedule" there would be openings for loom fixers, a job classification which is outside the bargaining unit, and indicated to Casasanto that he would be offered a loom fixer's job. Casasanto, who testified that he regarded the job of loom fixer as "a step higher" than his own job of weaver, told Nelson that he would "think it over." Several days later Casasanto informed Nelson that he would not resume work. At the time of the hearing he was still on strike.2 I A motion by the General Counsel on the third day of the hearing to amend the com- plaint so as to allege violations of Section 8 (a) (3) and (1) of the Act was denied as hav- ing been untimely filed 2 The findings concerning these conversations are based upon Casasanto's testimony. He was a witness for the General Counsel. On the other hand, Nelson, a witness for the Re- spondent, testified as to the first conversation that It amounted only to "Hello, how are you ; how's It going," and "things like that." As to the second conversation, Nelson' s testi- BLACKSTONE MILLS, INC. 777 Samuel Damsky, a weaver, is another striking employee whom Nelson solicited to return to work. About 1 week after the strike began, Nelson telephoned Damsky and asked him to return. Damsky declined. Subsequent like telephone calls were made as the weeks passed and the strike continued. One of the issues between the Respondent and the Union, about which Nelson and Damsky talked, was the sub- ject of "downtime," i. e., compensation to weavers for the periods of time when their looms were out of order and were being repaired by the loom fixers. Weavers were paid on a piece-rate basis. Prior to the strike, a weaver whose loom was out of order had been paid downtime on the basis of his average hourly earnings over a period of 50 hours, but the Respondent, in the prestrike negotiations, had proposed the elimina- tion of all downtime payments. During the conversations between Nelson and Dam- sky in August and September, Nelson said that downtime would not be paid to weavers who returned to work, but during October Nelson said to Damsky that the downtime issue might be settled. As related below, the Respondent had made an offer concerning downtime during August. Additional striking employees whose return to work was solicited by Nelson are Walter Linenkemper, Paul F. McClellan, Jr., Stanley Chrastowski, Peter Matisewski, and John Pulnik. On or about October 27, Linenkemper telephoned Nelson and asked whether a settlement of the issues between the Respondent and the Union might be facilitated if "a new committee" were selected to deal with the Respond- ent. Nelson replied that he would call at Linenkemper's home that evening, and he did so. After a few comments about a new committee,' there was a discussion concerning whether Linenkemper would return to work and he agreed to talk further with Nelson the next day. On the following evening, at Linenkemper's home, Nelson asked if Linenkemper would resume work, and received an affirmative re- sponse. Nelson then suggested that Linenkemper "help him out on it" by going "to somebody's house" and saying that he, Linenkemper, "was going to go back to work." It was agreed that Linenkemper and Nelson would meet the next evening' On the following evening, Linenkemper met Superintendent Nelson at the latter's home. Several other persons were present, namely, McClellan and Pulnik, weavers who were on strike, Al Nelson, an assistant foreman who is a brother of Superin- tendent Nelson, and Louis Starnes, a loom fixer which, as previously noted, is a job classification outside the bargaining unit.' Superintendent Nelson asked Mc- Clellan to return to work, saying that downtime would "be taken care of," that the piece rate to be paid to weavers was that which had been offered to the Union in negotiations, and that employees who returned to work the next day would re- mony appears to be a denial that it took place. He expressly denied having asked any em- ployees to return to work until several days after the date of the conversation. The record will not support such denial. Moreover, as will appear, I am unable to credit Nelson's testimony in several instances I reject it here. 3 Both Linenkemper and Nelson testified about these comments. It is unnecessary to recite their testimony, however, other than to point out that Linenkemper, a witness for the General Counsel, testified that on the next day Nelson told him that "a new committee would [not] help any," and that Nelson at no time, according to Linenkemper's testimony, encouraged Linenkemper to work for the formation of a new committee. It is not per Be an unfair labor practice for an employer to meet with "individual strikers rather than with the Union as such" where the meetings are arranged by the strikers Cf. Harcourt and Company, Inc., 98 NLRB 892, 906-7 * The findings concerning the conversation between Linenkemper and Nelson on this occa- sion are based upon the former's credible testimony. Nelson's testimony is confusing. He acknowledged having talked with Linenkemper about a new committee and returning to work, but it is not clear whether Nelson acknowledged having talked with Linenkemper upon this occasion. Much of the confusion lies in an arrangement which Nelson had with a striking employee for the employee to identify himself as "Mr. Jones" when telephoning Nelson, plus the fact that inconsistent testimony concerning this arrangement is unex- plained in the transcript or brief McClellan testified for the General Counsel that he had such an arrangement, but Linenkemper did not testify that he too had it. When Nelson later testified for the Respondent he did not expressly deny having had the arrangement with McClellan, but testified that he had it with Linenkemper. 5 The record does not disclose the full circumstances under which McClellan, Pulnik, Al Nelson, and Starnes were present, but it appears that Superintendent Nelson sent his brother for McClellan and that the four persons drove to the home of Superintendent Nel- son in Al Nelson's automobile. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ceive seniority commencing as of that day and that "people coming in afterwards would have less seniority.. ." " Following the conversation at the home of Superintendent Nelson, he, McClellan and Linenkemper drove to a house in which two other striking employees , Chras- towski and Matisewski, lived. They went there after Nelson had telephoned Chrastow- ski to inform him of their coming. Nelson asked Chrastowski and Matisewski if they would return to work, saying inter alia that downtime would be taken care of and that seniority would commence as of the day an employee returned to work.' Two additional striking employees were solicited to resume work. The circum- stances concerning the solicitation of Jennie Sorel may be set out in a footnote," while the circumstances concerning the solicitation of Frank Sablock will be recited in more detail. Sablock worked for the Respondent as a quiller under Foreman John Kubiski, his stepfather. Shortly before the strike began, Sablock took sick leave because of a heart ailment. After recovering to the point that he was able to work, he became a striker. About September 1, Julian Cohen, the Respondent's presi- " The findings concerning Superintendent Nelson's remarks to McClellan are based upon the latter's testimony. On the other hand, Nelson, while acknowledging that he asked McClellan , Linenkemper, and Pulnik to return to work , and that he spoke of downtime and piece rates with McClellan , unconvincingly denied that be told McClellan that strikers who resumed work promptly would receive greater seniority than those who returned to work later. According to Nelson , the matter of seniority was raised by McClellan who asked what his seniority would be if he returned to work and the issues between the Respondent and the Union were later settled Nelson testified that he answered McClellan 's inquiry by saying that McClellan already possessed "about six years of seniority " and that McClellan would have a job unless and until "business gets so poor" as to necessitate extensive layoffs. Nelson testified further than no one else participated in this conversation with McClellan. Al Nelson, Starnes , and Pulnik were not witnesses. Linenkemper did not testify that he overheard the conversation between Superintendent Nelson and McClellan . I am unable to credit Nelson's denial that he said to McClellan that strikers who resumed work promptly would receive greater seniority than those who returned to work later. As found below, Nelson made a like remark to employees later that evening, and Foreman Kubiski made a like remark to Employee Frank Sablock. 7 The findings concerning Nelson's remarks on this occasion are based upon the testi- mony of Linenkemper and McClellan . On the other hand, Nelson, Chrastowski, and Matisewski , witnesses for the Respondent , testified differently . Nelson testified that he had difficulty in recalling the conversation , that it took place primarily among the strik- ing employees , and that he said little more than to introduce Linenkemper and McClellan to Chrastowski and Matisewski with the remark that Linenkemper and McClellan wanted to return to work and that perhaps Chrastowski and Matisewski did also. Nelson testified further that he could not recall any reference to downtime , seniority , or rates of pay. Matisewski testified that he participated in the conversation only long enough to be told by Nelson , "Pete , I need your work for Monday ," and to answer that he had a job and would not return to work on that day. According to Matisewski , he heard nothing else said because he left promptly after replying to Nelson . Chrastowski testified that he was asked by McClellan if he would return to work, that he answered that he would do so if a number of weavers also returned , that he could not recall anything that Nelson said, and that Nelson did not speak to him or say anything about seniority or piece rates. I am unable to credit the Respondent 's testimony that Nelson did not speak of downtime or seniority , that Nelson participated in the conversation to so slight an extent , and that the conversation involved no more remarks than those testified to by the Respondent's wit- nesses. It is unreasonable to conclude that Nelson, being interested in having the plant resume operations , knowing of the employees ' interest in the conditions under which they might return to work, and having arranged for the conversations of the evening, would have maintained a near silence. 8 Sorel testified that upon a number of occasions Superintendent Nelson asked her to return to work. As found below, under the circumstances of this case, mere solicitation of an economic striker to return to work is not an unfair labor practice . Sorel also testified that upon one occasion Nelson offered her an advanced place upon the seniority list. She testified further that Nelson also said to her that if the Respondent "could get rid of the AFL" it would be possible to "get a union of our own , the CIO, for instance, and after things got rolling, we could get rid of the CIO and have our own shop union ." Nelson acknowledged having had a conversation with Sorel at about the date that she testified that these remarks were made, but he denied that any reference was made to the strike and testified that he could not recall what was said . I am unpersuaded that a remark such as that quoted would have been made by Nelson. BLACKSTONE MILLS, INC. 779 dent, asked Sablock to resume work on the next Monday, saying that other strikers were expected to resume work at that time. Sablock answered that he "would see." Subsequently, Superintendent Nelson asked Sablock if he would return to work, and received a negative answers Upon several occasions, Foreman Kubiski spoke with Sablock about returning to work and once said that he would give Sablock "an easier and lighter job" than quilling. In late October, Kubiski said to Sablock that if Sablock did not return to work he would "be at the bottom of the seniority list, lose all seniority rights and so forth," that the Respondent intended "to disregard the Union" and "to start their own organization and start their own seniority list, and as they [the strikers] come back to work, that's the way the seniority list would stand." On various dates following the conversations which Superintendent Nelson had with Linenkemper, McClellan, Chrastowski, and Matisewski, those striking employees returned to work. They and other returning employees received the rates of pay which the Respondent had offered to the Union. They received downtime on the basis of 80 percent of their average hourly earnings for the time that their looms were idle after the first half hour of idleness," a figure which the Respondent had not offered directly to the Union, but which it had given to William J. Fallon, a conciliator of the Massachusetts Board of Conciliation and Arbitration, for trans- mission to the Union as described in the footnote." Although, as found, Nelson had said to employees that their seniority would be computed from the day upon which they returned to work, it does not appear that the Respondent has so com- puted seniority. 9 The findings concerning these conversations are based upon Sablock's testimony. Julian Cohen was not a witness and Sablock's testimony as to the conversation with him is uncon- tradicted. On the other hand, Nelson unconvincingly denied having spoken to Sablock about returning to work. 10 The findings concerning Kubiski's remarks to Sablock are based upon the latter' s uncon- tradicted testimony. Kubiski was not a witness. The Respondent argues that Sablock bears hostility toward Kubiski and should not be believed, and that in any event Kubiski's solicitation of Sablock to resume work was that of a stepfather of his stepson in their own home for which the Respondent is not chargeable. Whatever may be Sablock's hostility toward Kubiski, and Sablock was not asked specific questions on the point, hostility alone does not furnish a sufficient basis for disbelieving the uncontradicted testimony of Sablock. Nor are Kubiski's remarks excusable because he is Sablock's stepfather and the solicitation took place in their residence. Quite naturally the remarks were made at the place where Sablock lived, just as other solicitations in this case occurred in private residences. More- over, Kubiski's solicitation of Sablock to resume work was not isolated since, as found, two other representatives of management asked Sablock to resume work. Finally, one may not infer on the record here that Kubiski was motivated by domestic reasons. A more reasonable inference is that the motivation lay in the Respondent's need for Sablock's serv- ices since he was one of a few quillers and their work is essential and preliminary to that of the weavers. u The only evidence in the record that the Respondent paid the prestrike downtime rate of 100 percent to a weaver who resumed work is the testimony of Chrastowski, a witness for the Respondent. I believe that Chrastowski did not know the basis upon which down- time was computed and that his testimony is in error. 12 As related, in the prestrike negotiations, the Respondent had proposed the elimination of downtime As also related, negotiations continued during the strike. On August 20, Fallon met with representatives of the Respondent and the Union. Those representatives were segregated, and Fallon talked first with the representatives of one party and then the other, moving back and forth and transmitting proposals given to him. Fallon, a witness for the Respondent, testified that on that day he told the Respondent's representatives that the Union regarded downtime as "very important," following which those representa- tives talked among themselves and then Attorney Chandler, counsel for the Respondent, said to him that "we could work something out on downtime, about 80 percent after the first half hour" or that "We have worked on downtime," giving a figure of "80 percent after the first half hour." The record will not support a finding that this proposal was transmitted by Fallon to the Union's representatives, however. Several of those repre- sentatives were witnesses and their testimony is that the proposal was not transmitted. Fallon himself testified that he could not recall having transmitted it, although he talked with the Union's representatives concerning a number of issues in the dispute. As dis- cussed below, I do not regard Fallon's failure to transmit the proposal to the Union as decisive here. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Conclusions concerning the solicitation The parties are agreed that the strike which began on July 27, 1953, was economic in its inception. Our principal questions are whether the Respondent's solicitation of economic strikers to return to work was violative of Section 8 (a) (I) and (5) of the Act and whether the solicitation prolonged the strike, thereby converting it into an unfair labor practice strike. In determining the legality of the individual solicitations, it must be borne in mind that an employer whose employees are engaged in an economic strike is not required to wholly abstain from solicitation of the strikers to resume work. The limits of permissible solicitation are set forth in The Texas Company, 93 NLRB 1358, 1360, 1361, recently reaffirmed in Jordan Bus Company, et al., 107 NLRB 717." Our initial inquiry is whether any of the solicitations were coercive because accompanied by a promise of benefit or a threat of reprisal. Certain solicitations clearly do not fall within this category because they were no more than bare requests of the strikers to return to work upon the terms and conditions previously offered to, and rejected by, the Union. In this connection, the Respondent's payment of downtime after the first half hour at 80 percent of a weaver's average hourly earn- ings cannot be construed as an act in derogation of the Union's position as exclu- sive bargaining representative. The pertinent point is not whether the Respondent's offer of downtime at that rate to Conciliator Fallon, as described in footnote 12, should be construed as an offer communicated to the Union despite Fallon's failure to communicate it. The point instead is the Respondent's good faith. Since the offer to Fallon was made in good faith with the expectation that he would transmit it, as he transmitted other proposals between the Respondent and the Union, and since it appears that the Respondent was unaware of Fallon's failure to transmit it, I find that the offer and subsequent payment of downtime to returning weavers was not in derogation of the Union's position. I find also that the following solicitations were noncoercive: Nelson's solicitation of Casasanto,l' Damsky, Pulnik, and Sablock, and Cohen's solicitation of Sablock. On the other hand, I find to have been coercive Nelson's statement to McClellan, Linenkemper, Chrastowski, and Matisewski that the seniority of a striker would commence as of the day he returned to work since it embodied an offer of preferential seniority standing to strikers who returned prompt- ly and a threat of low standing to strikers who delayed their return. Also coercive was Foreman Kubiski's statement to Sablock that the Respondent intended to dis- regard the Union and that there would be a new seniority list based upon the order in which the strikers resumed work. Since the coercive statements were made in conjunction with the solicitation, the acts of solicitation were themselves violative of Section 8 (a) (1). Harcourt and Company, Inc., 98 NLRB 892, 908. The next inquiry is whether the solicitation of any or all of the named employees constituted a refusal to bargain collectively in violation of Section 8 (a) (5). A factor relevant to this issue is the relationship of the Respondent and the Union. Those parties had been under a contractual relationship for approximately 15 years, and the record does not disclose any union animus on the part of the Respondent prior to the matters which gave rise to this proceeding. Moreover, from time to 17 The record contains evidence concerning the existence of an impasse in the bargain- ing negotiations. Although it is true that an impasse existed at one or more times, I do not believe that the dates thereof are material here. In Celanese Corp. of America, 95 NLRB 664, 667, the Board appears to have held to the contrary, but in a number of other cases involving our problem the matter of an impasse was not discussed. Undoubtedly, the existence of an impasse is material in connection with the question of an employer's dealings with individual employees prior to a strike, but where an economic strike has occurred two principles are well established, namely, that an impasse is broken by the strike and that an employer may solicit striking employees to return to work if the solici- tation is within the bounds set out in The Texas Company case, supra. I conclude that in an economic strike situation, the existence of an impasse is not a prerequisite to lawful types of solicitation, nor does its existence excuse the unlawful types. 1* I do not find that Nelson's indication to Casasanto that Casasanto would be offered a loom fixer's job was a promise of benefit. Although Casasanto testified that he regarded such a job as "a step higher" than that of a weaver, his average hourly earnings on the piece rate for weavers exceeded by approximately 20 percent the hourly rate for a loom fixer. In any event, if there was a promise of benefit in this instance it constituted at most an additional violation of Section 8 (a) (1), but did not serve to prolong the strike. BLACKSTONE MILLS, INC. 781 time during the 5 months following the beginning of the strike, and during the pe- riods of the individual solicitations, representatives of the Respondent and the Union, with the assistance of conciliators, met and made proposals and counter- proposals concerning the issues between them. I do not believe that the individual solicitations constituted an integral part of a pattern of illegal opposition to the purposes of the Act, or that they were reasonably calculated to undermine the Union's position as exclusive bargaining representative and to demonstrate that the Respondent sought individual rather than collective bargaining. The Texas Com- pany, supra; Harcourt and Company, Inc., supra. The vice in certain solicita- tions, as we have seen, was not the request of strikers to return to work. The vice was the threat to discard an established seniority system and to establish a new and different one. There is no evidence that the system was in fact discarded, how- ever. I find that the Respondent did not intend to discard it, but engaged in the threat as a tactical step designed to coerce the strikers into resuming work. The coercion was violative of Section 8 (a) (1) as found, but was not a refusal to bar- gain collectively with the Union. We turn to the question whether the solicitations prolonged the strike and there- by converted it into an unfair labor practice strike. It is well established that such conversion will be found only when there is proof of a "causal relationship between the unfair labor practices and the prolongation of the strike." Harcourt and Com- pany, Inc., supra, at page 909, and cases cited therein. There is no such relation- ship here. The strike began on July 27, 1953, following the inability of the Respond- ent and the Union to reconcile their differences concerning a new contract. Nego- tiations continued for a period of several months and involved essentially the mat- ters upon which those parties were in disagreement when the strike began. On December 16, at the final bargaining session before the hearing, the Respondent made its last proposals. On December 20, the Union's membership rejected the proposals. There is no evidence that the Respondent's unfair labor practices found herein were also involved in the negotiations or contributed in any sense to the in- ability of the Respondent and the Union to reach an understanding on a new con- tract. I find that the strike was not converted into an unfair labor practice strike, but that it remained economic in character. D. Other alleged unfair labor practices Two matters remain to be considered. The first is an event which occurred ap- proximately 1 month before the strike began. On June 25, during a bargaining session in which the Respondent presented its wage proposals to the Union, the Respondent began a distribution to employees of a mimeographed statement em- bodying the proposals. The statement recited that the Respondent on that day had proposed the rates to the Union's bargaining committee, and that the proposed reduc- tions and increases were necessary to correct inequities in the wage structure and to assure that the Respondent could continue its business "in a competitive market." The statement also recited that "All members should attend their local union meet- ing on Sunday in order to properly advise their Committee as to their feelings toward these adjustments." The entire statement is within the "free speech" provisions of Section 8 (c) of the Act. Its distribution does not constitute substantial evidence of an effort by the Respondent to undermine the Union or to bargain individually with the employees. Cf. Jacobs Manufacturing Company, 94 NLRB 1214, 1225; United Welding Company, 72 NLRB 954, 955. The remaining matter involves an incident on December 16 during the final negoti- ation session. The Union's original charge in this proceeding had been filed earlier, and on the day of that session the Union filed its amended charge. Fallon, the con- ciliator mentioned above, was present at the session. He testified that he had been in- formed by the Union of its charge and that he also was informed by the Respondent of litigation which it had instituted in a State court against the Union and of a charge which it had filed, or intended to file, with the Board alleging violations of Section 8 (b) of the Act.15 Fallon also testified that during the session, when he received from the Respondent certain proposals for transmission to the Union, the Respondent in- sisted that any agreement settling the issues between it and the Union must contain 15The charge was filed by the Respondent 2 days later, on December 18. Case No. 1-CB-252. In its brief, the Respondent asserts that the matter was disposed of by a settle- ment agreement between the Regional Director and the Union. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a provision that "all litigation" between them would be terminated. Thus, the Re- spondent insisted in part that, as a condition precedent to the execution of any new contract to which it and the Union might agree, the Union's charges against it be withdrawn. The General Counsel asserts that this insistence constituted a refusal to bargain collectively. It has long been established that an employer may not make compliance with the Act's bargaining requirements contingent upon a union's with- drawal of charges that the employer has violated the Act. Particular cases need not be cited. It is sufficient to recite that I have not been referred to a case, nor have I found one, which is factually in point with the instant proceeding, and that I regard the established doctrine as inapposite here. We are not dealing with a situation in which the Respondent insisted that the Union withdraw its charges before bargaining negotiations would be commenced or resumed, nor a situation in which the Re- spondent's insistence upon the termination of "all litigation" between them prevented the consummation of a contract. We have instead a situation in which there were various unresolved issues between those parties, and the Respondent's position on the particular point was not "calculated to prevent agreement from being reached." Burns Brick Company, 80 NLRB 389, 396. Under these circumstances, the Respondent, by insisting that a new contract embrace a provision that all litigation be terminated, did not refuse to bargain collectively.is In summary, I find that the Respondent violated Section 8 (a) (1) of the Act by Nelson's solicitation of McClellan, Linenkemper, Chrastowski, and Matisewski, and by Kubiski's solicitation of Sablock, to return to work. In all other respects, I find that the allegations of the complaint are not supported by substantial evidence. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found in section III, above, to have been unfair labor practices, occurring in connection with the operations of the Respondent de- scribed in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I shall not recommend, however, that the Board issue a broad cease and desist order because the record does not dis- close a danger that the Respondent may commit unfair labor practices unrelated in kind to those found herein and covered by the remedial recommendations below. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Textile Workers of America, A. F. of L., Local 1817, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent, Blackstone Mills, Inc., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. 4. The allegations of the complaint that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act, and that the strike of the Respondent's employees which began on July 27, 1953, was prolonged by the Respondent's unfair labor practices, have not been sustained. [Recommendations omitted from publication.] M With this finding the allegation that the Respondent refused to bargain collectively is disposed of in its favor. Therefore, it is unnecessary to make findings concerning an appro- priate unit and the Union's majority status therein, and to consider the Respondent's con- .tentions that the unit set forth in the complaint is inappropriate and that the Union, -through certain members, engaged in unlawful activity so that the Respondent should not be required to bargain collectively with It.